IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs November 18, 2014

On Remand April 13, 2015

JERRY ROMMELL GRAY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 10-2275 Steven Wayne Sword, Judge

No. E2014-00849-CCA-R3-PC – Filed May 13, 2015

Petitioner, Jerry Rommell Gray, was convicted in Knox County of felony murder, 

attempted especially aggravated robbery, and attempted aggravated robbery. Trial 

counsel filed a premature notice of appeal and an untimely motion for new trial. On 

direct appeal, this Court reviewed Petitioner’s issues, other than sufficiency of the 

evidence, for plain error. State v. Jerry Rommell Gray, No. E2010-00637-CCA-R3-CD, 

2012 WL 2870264, at *1 (Tenn. Crim. App. July 13, 2012), perm. app. denied (Tenn. 

Nov. 20, 2012). Petitioner’s convictions were affirmed. Petitioner subsequently filed a 

petition for post-conviction relief in which he sought a delayed appeal based on 

ineffective assistance of counsel, specifically alleging that trial counsel’s failure to file a 

timely motion for new trial was presumptively prejudicial. The post-conviction court 

determined Petitioner was entitled to a delayed appeal but instructed Petitioner that he 

was not permitted to file an additional motion for new trial. Petitioner appealed to this 

Court, and we determined that the petition was untimely, reversed the decision of the 

post-conviction court, and remanded the matter for a hearing on whether due process 

should toll the statute of limitations. See Jerry Rommell Gray v. State, No. E2014-00849-

CCA-R3-PC, 2014 WL 6876184, at *1 (Tenn. Crim. App. Dec. 5, 2014), perm. app. 

granted (Tenn. Apr. 13, 2015). Petitioner filed an application for permission to appeal 

pursuant to Rule 11. The supreme court granted the application in light of the timeliness 

of the petition for post-conviction relief and remanded the case to this Court to consider 

whether the post-conviction court should have allowed Petitioner to file a second motion 

for a new trial when it granted him a delayed appeal. We determine the trial court 

improperly prohibited Petitioner from filing a motion for new trial upon grant of the 

delayed appeal. Accordingly, the judgment of the post-conviction court is reversed and 

remanded. On remand, Petitioner is entitled to file a motion for new trial, pursuant to 

Tennessee Code Annotated section 40-30-113(a)(3). 
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Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed 

and Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined. 

J. Liddell Kirk, Knoxville, Tennessee, for the petitioner, Jerry Rommell Gray.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant 

Attorney General; Mike Flynn, District Attorney General; and Kevin Allen, Assistant 

District Attorney General, for the respondent, State of Tennessee. 

OPINION ON REMAND

Procedural Background

This matter is before this Court on remand from the supreme court following 

Petitioner’s appeal of the post-conviction court’s dismissal of his petition for postconviction relief and our subsequent opinion reversing and remanding the judgment of 

the post-conviction court. This Court examined the convoluted procedural posture of this 

case in our original opinion. See Jerry Rommell Gray v. State, No. E2014-00849-CCAR3-PC, 2014 WL 6876184, at *1-3 (Tenn. Crim. App. Dec. 5, 2014), perm. app. granted

(Tenn. Apr. 13, 2015). 

The Petitioner was convicted of first degree felony murder, attempted especially 

aggravated robbery, and attempted aggravated robbery on February 24, 2010. A 

premature notice of appeal was filed before the sentencing hearing. An untimely motion 

for new trial was filed after the judgments became final. The trial court did not hear the 

untimely motion.

On direct appeal, this Court reviewed the issues presented by Petitioner in the 

untimely motion for new trial and on appeal for plain error only, with the exception of the 

sufficiency of the evidence. Finding no plain error, we affirmed the convictions and 

sentence. State v. Jerry Rommell Gray, 2012 WL 2870264, at *1. 

Petitioner then filed a timely pro se petition for post-conviction relief. Petitioner 

sought post-conviction relief for his convictions for which he received a life sentence 

plus fifteen years. Petitioner claimed that his petition was untimely filed but asserted that 

a new rule of constitutional law, ineffective assistance of counsel, prosecutorial 

misconduct, and judicial misconduct mandated relief. 
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Factual Background

After Petitioner filed his original pro se petition for post-conviction relief, the 

post-conviction court appointed counsel and an amended petition was filed. In the 

amended petition, Petitioner asserted that trial counsel was ineffective for filing a 

premature notice of appeal and for filing an untimely motion for new trial. Petitioner 

complained that the alleged ineffective assistance of counsel required Petitioner’s issues 

to be “subject to the more difficult standard of plain error review” on appeal.

The post-conviction court held a hearing on the petition for relief. No testimony 

was offered at the hearing. The post-conviction court heard argument of counsel and 

took the matter under advisement. The post-conviction court entered an order containing 

findings of fact and conclusions of law. In the order, the post-conviction court noted that 

Petitioner asserted—and the State did not contest—that trial counsel’s performance fell 

below reasonable professional standards with regard to the first prong of Strickland v. 

Washington, 466 U.S. 668, 687 (1984), by failing to timely file a motion for new trial. 

The post-conviction court determined that trial counsel’s errors resulted in Petitioner’s 

issues being reviewed for plain error on appeal. The post-conviction court deemed trial 

counsel’s actions to amount to ineffective assistance of counsel. Specifically, the postconviction court determined that the actions of counsel were “presumptively prejudicial.” 

Additionally, the post-conviction court determined that “although Petitioner’s appellate 

issues were reviewed for plain error, trial counsel’s failure to timely file a motion for new 

trial resulted in a higher standard of scrutiny on appeal and potential waiver of issues, and 

therefore, Petitioner’s prior direct appeal does not remove the prejudice to him.” The 

post-conviction court determined that Petitioner would have raised the issues he raised on 

direct appeal in a motion for new trial had it not been for trial counsel’s ineffectiveness. 

As a result, the post-conviction court denied Petitioner a new trial but granted Petitioner a 

delayed appeal pursuant to Tennessee Code Annotated section 40-30-113(a)(1). The 

post-conviction court noted that a motion for new trial was filed in the original case and 

that it was “just late,” commenting that “the [c]ourt’s understanding of the law is that the 

issues that were raised in the late-filed motion for a new trial that was dismissed . . . are 

those that he can present on direct appeal to the Court of Criminal Appeals for further 

consideration.” The post-conviction court clarified the intent of its ruling by explaining 

that it was the “[c]ourt’s intent that [Petitioner] be able to raise those issues as if they had 

been raised and argued and denied at a motion for new trial.”

Analysis

On remand, we were directed to determine whether the post-conviction court 

should have allowed Petitioner to file a new motion for new trial when it granted him a 

delayed appeal. The answer is yes.
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In this case, Tennessee Code Annotated section 40-30-113 applies. This statute 

outlines the procedure for granting a delayed appeal as follows:

(a) When the trial judge conducting a hearing pursuant to this part finds that 

the petitioner was denied the right to an appeal from the original conviction 

in violation of the Constitution of the United States or the Constitution of 

Tennessee and that there is an adequate record of the original trial 

proceeding available for a review, the judge can:

(1) If a transcript was filed, grant a delayed appeal;

(2) If, in the original proceedings, a motion for a new trial was filed and 

overruled but no transcript was filed, authorize the filing of the transcript in 

the convicting court; or

(3) If no motion for a new trial was filed in the original proceeding, 

authorize a motion to be made before the original trial court within thirty 

(30) days. The motion shall be disposed of by the original trial court as if 

the motion had been filed under authority of Rule 59 of the Rules of Civil 

Procedure.

(b) An order granting proceedings for a delayed appeal shall be deemed the 

final judgment for purposes of review. If either party does appeal, the time 

limits provided in this section shall be computed from the date the clerk of 

the trial court receives the order of the appellate court determining the 

appeal.

(c) The judge of the court which sentenced a prisoner who has sought and 

obtained relief from that sentence by any procedure in a federal court is 

likewise empowered to grant the relief provided in this section.

The post-conviction court granted Petitioner a delayed appeal pursuant to 

Tennessee Code Annotated section 40-30-113(a)(1) but declined to allow Petitioner to 

file a motion for new trial. It is well-settled that an untimely motion for new trial is a 

nullity. See Tenn. R. Crim. P. 33(b). Upon review, we determine the proper procedure 

upon grant of a delayed appeal in this case would be the method proscribed in Tennessee 

Code Annotated section 40-30-113(a)(3), authorizing the filing of a motion for new trial. 

Thus, once the post-conviction court found Petitioner was entitled to a delayed appeal, 

the post-conviction court should have followed the procedure set forth in subsection 

(a)(3), authorizing Petitioner to file a motion for new trial within thirty days. 

Consequently, we reverse and remand the judgment of the post-conviction court denying 
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Petitioner the opportunity to file a motion for new trial. On remand, the post-conviction 

court should permit Petitioner to file a motion for new trial.

We are mindful that the original trial judge is no longer a judge and is, therefore, 

unable to consider a motion for new trial in this case.1 Rule 25(b)(1) of the Rules of 

Criminal Procedure provides: “After a verdict of guilty, any judge regularly presiding in 

or who is assigned to a court may complete the court’s duties if the judge before whom 

the trial began cannot proceed because of absence, death, sickness, or other disability.” 

Rule 25(b)(2) elaborates that “[t]he successor judge may grant a new trial when that 

judge concludes that he or she cannot perform those duties because of the failure to 

preside at the trial or for any other reason.” The determination by a successor judge 

when assessing whether he or she may perform the duties of the original trial judge 

necessarily includes an evaluation of the extent to which witness credibility is an issue. 

See T.C.A. § 17-1-305 (2009); Tenn. R. Crim. P. 25(b)(2); State v. Joel E. Blanton, No. 

M2007-01384-CCA-R3-CD, 2009 WL 537558, at *8-10 (Tenn. Crim. App. Mar. 4, 

2009), perm. app. denied (Tenn. Aug. 24, 2009).

The Tennessee Supreme Court recently examined: “(1) the analytical framework 

that a successor judge should utilize in deciding whether he can act as the thirteenth juror, 

and (2) the standard of appellate review of a successor judge’s determination that he can 

or cannot act as the thirteenth juror.” State v. Ellis, 453 S.W.3d 889, 892 (Tenn. 2015). 

This assessment requires the successor judge “to determine the extent to which witness 

credibility was a factor in the case and the extent to which he [or she] ha[s] sufficient 

knowledge or records . . . in order to decide whether the credible evidence . . . adequately 

supported the verdict.” Id. at 901 (quoting State v. Nail, 53 S.W.3d 264, 275 (Tenn. 

Crim. App. 2000)). To that end, the court recognized that “the cold record of a trial 

generally will reflect all but one of the components that comprise” witness credibility. Id.

at 906. As a result, the court adopted a rebuttable presumption in favor of the successor 

judge ruling as thirteenth juror and held that “[o]nly if the record indicates that weighing 

the evidence would require an assessment of witness demeanor should the successor 

judge decline to act as the thirteenth juror.” Id. at 909. This Court has explained that 

because a “successor judge was not at the trial to see any of the witnesses testify and 

would [be] unable to make a credibility determination from the written record[, a] 

successor judge cannot rule on a motion for a new trial if witness credibility is an 

overriding issue.” State v. Biggs, 218 S.W.3d 643, 655 (Tenn. Crim. App. 2006); see 

 

1Richard R. Baumgartner was the original trial judge in February 2010. He sentenced Petitioner 

to a life sentence in count 1 (first degree murder) immediately after the jury returned its verdict. Former 

Judge Baumgartner was removed as a trial judge before Petitioner’s sentencing hearing in count 2 

(attempted especially aggravated robbery) and count 3 (attempted aggravated robbery), which was 

rendered by Judge Bobby McGee, sitting by interchange. Senior Judge Jon Kerry Blackwood, sitting by 

designation, determined that Petitioner’s March 8, 2011 motion for new trial was untimely. 
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also State v. Gillon, 15 S.W.3d 492, 502 (Tenn. Crim. App. 1997) (“[A] judge whose first 

exposure to the case [is] presiding over the motion for new trial [may] rule on the motion 

if the record [is] available so long as witness credibility [is] not an overriding issue.”). 

Likewise, the Tennessee Supreme Court has determined that “[w]hen witness credibility 

is the primary issue raised in the motion for new trial, the successor judge may not 

approve the judgment and must grant a new trial.” State v. William Eugene Hall, No. 

M2012-00336-SC-DDT-DD, ___ S.W.3d ___, 2015 WL 1345720, at *17 (Tenn. Mar. 

20, 2015) (citations and internal quotation marks omitted) (citing State v. Letalvis 

Cobbins, No. E2012-00448-SC-R10-DD, slip op. at 2 (Tenn. May 24, 2012) (per curiam 

order)). 

On remand in this case, the post-conviction court shall grant a delayed appeal. 

Petitioner shall have 30 days from entry of this opinion to file a motion for new trial. The 

Presiding Judge for the 6th Judicial District shall immediately appoint a successor judge. 

Once appointed, the successor judge should make an initial determination using the test 

set forth in Ellis to determine whether there is an adequate record in this case for the 

successor judge to review and make all proper assessments of the evidence presented at 

Petitioner’s February 2010 trial. If the successor judge determines that the record is 

adequate and witness credibility is not an overriding issue, the judge should rule on any 

motion for new trial filed by Petitioner. 

Conclusion

After a review of the record, we determine that the post-conviction court erred by 

denying Petitioner the full opportunity statutorily provided to him upon grant of the 

delayed appeal, that is, Petitioner’s right to file a motion for new trial. Accordingly, we 

reverse and vacate the post-conviction court’s order and remand the case to the postconviction court. On remand, the post-conviction court should grant a delayed appeal, 

allowing counsel for Petitioner to file a motion for new trial setting forth all claims of 

error at Petitioner’s February 2010 trial within 30 days, pursuant to Tennessee Code 

Annotated section 40-30-113(a)(3). Additionally, we direct the Presiding Judge for the 

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th Judicial District to appoint a successor judge to the original trial judge for the purpose 

of review and assessment of the trial record pursuant to Rule 25(b)(1) and (2) of the 

Rules of Criminal Procedure as read in harmony with Ellis. It is further ordered that the 

trial record of this matter be returned to the Criminal Court Clerk’s Office for Knox 

County.

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TIMOTHY L. EASTER, JUDGE